Prescriptive easements are typically granted when a person uses property in a way that is adverse to the property owner for a certain period of time, and then claims the right to continue using the land for that purpose under an easement by prescription. The legal requirements for a prescriptive easement are similar to the requirements for adverse possession, with the difference being that adverse possession results in a grant of title to the land, but a prescriptive easement only results in a right to use the property within the scope of the easement.
To obtain a prescriptive easement in Arizona, “a person must establish that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and that the use was hostile to the title of the true owner of the land.” Paxson v. Glovitz, 203 Ariz. 63, 50 P.3d 420, (App. 2002).
Actual and visible use—also referred to as open and notorious use—requires a person to use the land in a way that shows the public that they are using the land. The ten-year requirement of use is derived from the statute of limitations to bring an action to quiet title. See, A.R.S. § 12-526.
The requirement of hostile use prevents someone from getting permission to use a property owner’s land and then attempting to claim a prescriptive easement. If the use is permissive, it cannot result in a prescriptive easement because the use is not hostile to the land owner.
This can present a difficult issue in cases of imperfectly granted easements. In Paxson, an easement agreement was made granting a right of way, but it was not properly recorded. Several decades later, the property owner’s successor attempted to build a fence that blocked the right of way. Paxton filed an action claiming that a prescriptive easement had been granted.
The court had to decide whether the fact that an imperfect easement agreement was made would prevent a finding of hostile use. Because the property owner had agreed to grant the right of way, it could be said that the use was permissive, which would defeat a finding of a prescriptive easement.
The court noted the distinction between granting a recorded easement, which would result in a fixed right to use the property, and merely giving permission, which could be revoked at any time. An intended, but imperfect grant of an easement, can transform into a prescriptive easement, if all the other legal requirements are met.
Chernoff Law handles real estate litigation matters throughout Arizona. Contact us to discuss your adverse possession or prescriptive easement claims by calling 480-719-7307 to discuss your real estate matters.